Julie McStay and Lucinda Smith

COVID-19: AHPPC, Aged Care Directive and Industry Access code update, Emergency Leave and the Serious Incident Response Scheme

Julie McStay and Lucinda Smith

June 26, 2020

Aged Care Legislation Updates Retirement Villages

Since our last blog post, there have been several updates to accommodate the changing circumstances around COVID-19. These changes vary between different States and Territories. The changes are largely consistent with a recent statement by the Australian Health Protection Principal Committee (AHPPC) which issued an update on 19 June 2020 to their advice for aged care providers about minimising the impact of COVID-19.

In this blog post, we summarise the AHPPC’s update and draw your attention to the most significant changes which have been made to directions in New South Wales, South Australia, Queensland, Victoria and Tasmania.  We also draw your attention to the contents of the Industry Access Code for Visiting Aged Care Homes which provides guidance material that providers also need to take into account in determining ongoing visitor access arrangements during the COVID-19 event.

AHPPC update

In line with the easing of COVID-19 restrictions across the country the AHPPC have issued an updated statement for aged care. The AHPPC’s position can be summarised as follows:

  • The following visitors and staff (including visiting workers) should not be permitted to enter an aged care facility:
    • Individuals who have returned from overseas in the last 14 days.
    • Individuals who have been in close contact with a confirmed case within the last 14 days.
    • Individuals who are unwell, particularly those with fever or acute respiratory infection symptoms.
    • Individuals who have not been vaccinated against influenza.
  • Children of all ages should be permitted to enter facilities subject to restrictions on visitor numbers and practicing social distancing and good personal hygiene.
  • Service providers such as hairdressers and allied health professionals should be permitted to enter homes subject to usual screening requirements and practising social distancing.
  • Spouses, close relatives and social supports should not be limited in the number of hours they visit with their loved ones in nursing homes.

Consistent with the AHPPC latest statement there have been a number of changes to many of the state directives. We have listed the current directives for the States and Territories here:

State or Territory First Direction date Current Direction date Direction end date Directions
Queensland  21 March 2020 17 June 2020 17 August 2020 Click here
New South Wales 24 March 2020 23 June 2020 21 September 2020 Click here
ACT 23 March 2020 14 May 2020 End of declared emergency Click here
Victoria 21 March 2020 21 June 2020 Until revoked Click here
Tasmania 23 March 2020 22 June 2020 Until revoked Click here
South Australia 23 March 2020 20 June 2020 Until revoked Click here
Western Australia 20 March 2020 25 April 2020 Until revoked Click here
Northern Territory 22 March 2020 24 June 2020 End of public health emergency declaration Click here

Further detail about the most significant changes to the state directives are set out later in this update.

Industry Access Code for Visiting Aged Care Homes

Providers would also aware of the Industry Access Code for Visiting Aged Care Homes (Code) which was finalised on 29 May 2020. A copy of the Code can be found here.

The aim of the Code is to provide a nationally consistent approach for friends, family and spiritual advisors to visit with their loved ones in aged care facilities during the COVID-19 event whilst minimising the risk of infection.

The Code is only a guide for providers to manage visits in nursing homes and it is not law; however the Quality and Safety Commission does expect providers to comply with it and has stated that the Commission will take the Code into account when assessing providers’ compliance with the Aged Care Quality Standards. Providers therefore need to carefully consider the provisions of the Code when implementing arrangements for family, friends and spiritual advisors to visit with residents in their aged care homes during the ongoing COVID-19 event.

The Code is only intended to be adopted during the COVID-19 event and while COVID-19 restrictions may be easing in some places across the country, given the potential impact of the virus on elderly people the Code is likely to remain in place for many months to come.

State and Territory Directions

Whilst providers need to consider and apply the Code they must also continue to comply with the State Directions which will continue to evolve as the COVID-19 event continues to unfold. The state directions are law and providers must continue to comply with them. To the extent there is any inconsistency between the Code and the Directions, the Directions will prevail.

We have set out below a summary of the most significant recent changes in those states directives.  

New South Wales

New South Wales most recent directive came into force on 23 June 2020 and can be found here.

Of significance, the new directive has removed restrictions on the number of care and support visits that a visitor can have in a day and a care and support visit is no longer limited to less than 2 hours.

The new directive now allows more classes of persons to enter aged care facilities including union representatives for employees or contractors and providers of personal care services (eg hairdressers).

The restrictions on persons under the aged of 16 which previously allowed entry only for end of life support visits have been lifted.

All of these persons must still however satisfy the screening requirements which include the requirements that the person:

  • Has not arrived from a place outside Australia in the 14 days before proposed entry;
  • Has not been in contact with a known COVID-19 case;
  • Does not have a temperature greater than 37.5 or symptoms of acute respiratory infection; and
  • Has an update to date flu vaccination.

The new directive now includes more clarity about qualifying exceptions to the flu-vaccination requirement. For example, a person with a medical certificate stating that they have a medical contraindication to influenza vaccination is exempted from the vaccination requirement. This confirms that positon that most providers were already adopting, namely that providers should seek a medical certificate evidencing a medical contraindication for a visitor to be exempt from the influenza vaccination requirements.

On 25 June 2020, the Chief Health Officer of New South Wales released a statement responding to the recent outbreak in Victoria. The statement advises that from 25 June 2020, until further notice:

  • Staff and visitors who have travelled to Melbourne within the last 14 days are denied entry into aged care facilities;
  • If a resident has been in Melbourne in the last 14 days and is wishing to return to a residential aged care facility, then approved providers should call the NSW Health Public Health Unit on 1300 066 055 for advice.

We expect that based on the above statement from the Chief Health Officer of New South Wales that a revised NSW direction will follow shortly. We will continue to monitor this and provide an update if and when this occurs.

South Australia

South Australia’s most recent directive came into force on 20 June 2020 and can be found here.

The directive makes a distinction between a “low community transmission zone” and the rest of Australia. Queensland has been added to the list of “low community transmission zones”. The list now includes:

  • Northern Territory;
  • Queensland;
  • Tasmania; and
  • Western Australia

Arrivals into South Australia from outside of these zones must not enter an aged care facility during the 14 days immediately after arrival. However, arrivals from outside these zones may still be allowed to enter for end-of-life support provided that they self-quarantine during any period they are not at the premises.

The direction has also removed restrictions on persons aged under 16 entering aged care facilities. Children must now meet the same screening criteria as adults entering facilities.

Finally, the direction no longer includes any restrictions on residents re-entering the home after they have left the premises.

Queensland

Queensland’s most recent directive came into force on 17 June 2020 and can be found here.

The new direction significantly eases the restrictions that were in place under the previous direction.

The direction has removed the restrictions on the number of care and support visits that a visitor can receive in a day. Care and support visits are no longer time limited and the only limitation is that they are limited to a maximum of 2 visitors at a time per resident.

The direction has no longer lists the various categories of persons who are permitted to come into the home. It is now far simpler and states that the screening restrictions must be applied to all entrants to the home namely that no person can enter the home if the person:

  • Arrived in Australia from a place outside Australia in the 14 days before entry;
  • Has been in contact with a known COVID-19 case;
  • Has a temperature greater than 37.5 or symptoms of acute respiratory infection;
  • Does not have an update to date flu vaccination if the vaccination is available.

Similarly to the South Australian directive, this new directive has added that a person cannot come into the home if the person has been in a “COVID-19 Hotspot” in the 14 days before entry. A COVID-19 Hotspot is defined as any hotspot declared by the Chief Health Officer of Queensland.

Consistent with the approach adopted by many of the other states the prohibition on children under the age of 16 from being allowed entry to residential aged care facilities has now been lifted. The same screening requirements will apply to children as will apply to all other entrants to the home.

The new directive also eases the restrictions on allowing residents to leave aged care facilities. Residents are now permitted to leave the home for a number of reasons including:

  • to receive end of life or palliative care;
  • to receive or access health care;
  • to attend small family gatherings;
  • to undertake exercise; or
  • to attend a funeral.

Residents who form part of the same familial group (eg siblings and couples) can be permitted to leave together however group excursions from the facility are still not permitted.

The previous direction included a provision that allowed a provider to seek the express permission of the Chief Health Officer to grant an exemption for a resident to leave on compassionate grounds. This provision has been removed and it would appear, consistent with easing of restrictions and the terms of the direction that an operator can permit a resident to leave the premises for any reason, acting reasonably. Providers should continue to exercise all appropriate infection control measures for the safe return of those residents to the facility.

Victoria

Victoria’s latest directive came into force on 21 June 2020 and can be found here.

The new directive broadens the criteria of permitted visitors under the criteria of providing goods and services including functional and well-being support services. This may include hairdressing, diversional and recreational therapies and music therapy.

Tasmania

Tasmania’s latest directive came into force on 19 June 2020 and can be found here.

Consistent with many of the changes seen in the other states the latest Tasmanian direction has removed the restriction which limited the number of care and support visits to one visit per day. Additionally, care and support visits are no longer time limited. The only restriction that now applies is that they are limited to a maximum of 2 visitors at a time per resident.

Tasmania has also removed the prohibition on allowing children under the age of 16 to enter facilities. All persons, including children under the age of 16 are now subject to the same screening requirements that are set out in the Direction.

Northern Territory

The Northern Territory’s latest directive came into force on 24 June 2020 and can be found here.

The new direction eases some of the restrictions which were in place in previous directions.

The new directive removes the restriction which required that people limit their visits to not more than two hours per day as well as the restriction which limited visitation to one person alone or two persons together, per day, per resident of the facility. People under the age of 16 years old are also now able to enter facilities under the new direction.

In relation to the relevant influenza vaccination requirements, the direction provides some additional clarification namely that the influenza vaccination is taken not to be available to a person who has a medical contraindication to the vaccine.

The new direction also creates an exemption for certain individuals to enter facilities where they do not have an up-to-date influenza vaccination. Under the new direction a person who does not have an up-to-date vaccination against influenza may enter and remain on the premises of an aged care facility for the period reasonably required:

  • to deliver an item; or
  • to provide an emergency service that is necessary for the effective operation of the facility or to protect the health and safety of staff and residents.

Examples of the above include an ambulance officer who enters the facility to transport a resident of the facility to hospital and a plumber who enters and remains on premises to make emergency repairs (if a contractor with an up-to-date vaccination is not reasonable available to attend). Further, any person who enters or remains on the premises of a facility in accordance with this exemption must practise social distancing wherever possible and if delivering an item and it is reasonable to do so, must leave the item without entering any building on the premises.

Emergency leave during COVID-19

As providers would now be aware, the Federal government has recently created a new type of leave known as emergency leave to ensure that residents do not need to use their social leave entitlements or pay approved providers further fees to ensure their place in the service if a resident wishes to take temporary leave from the home during circumstances such as the current pandemic or some other epidemic or natural disaster.

When a resident takes emergency leave residents are not required to use their social leave or pay other fees to secure their place in the home but they are required to continue to pay their basic daily fees, means tested care fee and daily accommodation fees.

The emergency leave provisions are not intended to be used for hospital stays. Where a resident is admitted to hospital during an emergency period the resident is required to take hospital leave.

On 3 June 2020, the Aged Care (Leave from Residential Care Services) (Situation of Emergency – Human Coronavirus with Pandemic Potential) Determination 2020 came into effect. The determination defines the period of this emergency as being from 1 April 2020 until 30 September 2020.

This means:

  • the Government has determined that the current COVID-19 pandemic is an emergency situation;
  • all permanent aged care residents residing in any residential aged care facility within Australia can now access emergency leave ;
  • emergency leave was available from 1 April 2020; and
  • emergency leave will be available until 30 September 2020.

Serious Incident Response Scheme

The Federal Government recently announced new abuse reporting rules which will commence on 1 July 2021.

The scheme will, once implemented, require that approved providers report on a broader range of incidents which occur in facilities for example neglect, psychological or emotional abuse and inappropriate restraint (whether physical or chemical). It will also require that approved providers report incidents between residents where the resident who initiates, for instance physical contact, has a cognitive impairment. Aged Care Providers will be required to inform the Aged Care Quality and Safety Commission (the Commission) of any such allegations or suspicions.

Under the scheme, the Commission is responsible for receiving incident reports from approved providers and will be equipped with additional regulatory powers. For example, the Commission will be able to conduct its own investigations into relevant serious incidents and take regulatory action where needed.

This will be a significant change and we will share more information about the new scheme as it becomes available.

If you have any questions or concerns in relation to these changes, please do not hesitate to contact a member of our National Health, Aged Care and Retirement Village team.